Lyft, Inc. v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 30 December 2021
• Docket Number: No. 82148,82148
• Parties: LYFT, INC., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Mark R. Denton, District Judge, Respondents, and Kalena Davis, Real Party in Interest.
• Court: Nevada Supreme Court

501 P.3d 994

LYFT, INC., Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Mark R. Denton, District Judge, Respondents,andKalena Davis, Real Party in Interest.

No. 82148

Supreme Court of Nevada.

FILED December 30, 2021

Lewis Brisbois Bisgaard & Smith LLP and Jeffrey D. Olster, Jason G. Revzin, and Blake A. Doerr, Las Vegas, for Petitioner.

Clear Counsel Law Group and Jared R. Richards and Dustin Birch, Henderson, for Real Party in Interest.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, PARRAGUIRRE, J.:

In 2019, this court amended Nevada Rule of Civil Procedure (NRCP) 35, which governs mental and physical examinations of a party ordered during discovery in civil litigation.¹ The Legislature subsequently enacted NRS 52.380,² which also governs conditions for such examinations. The conditions imposed by NRS 52.380 differ from those imposed under NRCP 35, however. Specifically, the statute allows the examinee's attorney to attend and make audio recordings of all physical and mental examinations, while NRCP 35 disallows observers at certain mental examinations, prohibits the examinee's attorney from attending any examination, and allows audio recordings only upon a showing of good cause.

In the underlying dispute, the discovery commissioner concluded that NRS 52.380 supersedes NRCP 35, such that real party in interest's examinations must follow the procedures set forth in the statute. The district court summarily affirmed and adopted the discovery commissioner's report and recommendations. Petitioner, the party that sought the examinations, asserts that NRS 52.380 violates the separation of powers doctrine, which prevents one branch of government from encroaching on the powers of another branch, by attempting to abrogate NRCP 35. Petitioner seeks a writ of mandamus precluding the district court from requiring adherence to the assertedly unconstitutional statute during the examinations.

The judiciary has the power to regulate court procedure, and the Legislature may not enact a procedural statute that would abrogate a preexisting court rule. We conclude that NRS 52.380 attempts to abrogate NRCP 35 and that, by enacting it, the Legislature encroached on the inherent power of the judiciary. Thus, we hold that NRS 52.380 violates the separation of powers doctrine. The district court's decision to allow the examinations to proceed under NRS 52.380 was therefore a manifest abuse of discretion, and mandamus relief is warranted.

FACTS AND PROCEDURAL HISTORY

Petitioner Lyft, Inc., operates a ridesharing network. A vehicle providing services for Lyft's network collided with real party in interest, Kalena Davis, who was riding a motorcycle. Davis was seriously injured and sued Lyft for negligence, claiming $11.8 million in damages. Lyft disputed liability and retained three experts to contest the amount of Davis's damages. Lyft filed a motion to compel Davis to attend physical and mental examinations with its experts under NRCP 35. Davis opposed Lyft's motion on the ground that good cause did not exist for the examinations under NRCP 35.

After a hearing on Lyft's motion to compel, the discovery commissioner issued a report and recommendations concluding that Lyft showed good cause for its experts to examine Davis because he placed his mental and physical condition in controversy. The discovery commissioner sua sponte asked the parties to submit supplemental briefing regarding the differing examination conditions imposed by NRCP 35 and NRS 52.380. Thereafter, Davis argued that NRS 52.380 governed and requested the presence of his attorney at the examinations.

Following submission of supplemental briefing by the parties, the discovery commissioner concluded that NRS 52.380 irreconcilably conflicts with NRCP 35. Without citation to legal authority, the discovery commissioner concluded that NRS 52.380 provides substantive rights and thus supersedes NRCP 35. Consistent with NRS 52.380, the discovery commissioner recommended that Davis be allowed to have his attorney present to observe and make an audio recording of each exam. Lyft filed an objection to the discovery commissioner's recommendations. The district court overruled Lyft's objection without a hearing and entered an order summarily affirming and adopting the recommendations, and Lyft filed this writ petition.

DISCUSSION

We exercise our discretion to entertain Lyft's writ petition

The decision to entertain a writ petition is discretionary. Davis v. Eighth Judicial Dist. Court, 129 Nev. 116, 118, 294 P.3d 415, 417 (2013). Although "[a] writ of mandamus is not a substitute for an appeal," Archon Corp. v. Eighth Judicial Dist. Court, 133 Nev. 816, 819, 407 P.3d 702, 706 (2017) (citing Schlagenhauf v . Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) ), entertaining a petition for advisory mandamus is "appropriate when an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition," id. at 820, 407 P.3d at 706 (internal quotation marks omitted). However, we will entertain an advisory mandamus petition only "to address the rare question that is likely of significant repetition prior to effective review, so that our opinion would assist other jurists, parties, or lawyers." Id. at 822-23, 407 P.3d at 708 (internal quotation marks omitted). Finally, advisory mandamus is appropriate when our intervention will "clarify a substantial issue of public policy or precedential value." Walker v. SecondJudicial Dist. Court , 136 Nev. Adv. Op. 80, 476 P.3d 1194, 1199 (2020) (internal quotation marks omitted).

Whether NRS 52.380 supersedes NRCP 35 is an issue of statewide importance that presents a novel question of law requiring clarification. Because physical and mental examinations are frequently conducted during discovery, our clarification of this issue will assist the district courts and parties alike by resolving the uncertainty that exists over whether NRS 52.380 or NRCP 35 governs mental and physical examinations performed during discovery. Our intervention is further warranted because district courts are reaching different conclusions on this very issue. Moreover, this is a substantial issue of public policy due to the conflicting interests of plaintiffs and defendants with respect to the procedures for the examinations. Thus, we choose to entertain Lyft's petition.

NRS 52.380 plainly conflicts with NRCP 35

The parties dispute whether NRS 52.380 violates the separation of powers between the branches of government. The separation of powers "prevent[s] one branch of government from encroaching on the powers of another branch." Comm'n on Ethics v. Hardy , 125 Nev. 285, 292, 212 P.3d 1098, 1103 (2009) ; see also Nev. Const. art. 3, § 1. We review the constitutionality of a statute de novo, even in the context of a writ petition. Tam v. Eighth Judicial Dist. Court , 131 Nev. 792, 796, 358 P.3d 234, 237 (2015). "Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional." Id. at 796, 358 P.3d at 237-38.

"[T]his court indisputably possesses inherent power to prescribe rules necessary or desirable to handle the judicial functioning of the courts ...." State v. Second Judicial Dist. Court (Marshall), 116 Nev. 953, 963, 11 P.3d 1209, 1215 (2000) ; see also NRS 2.120(2) (explaining that this court "shall regulate original and appellate civil practice and procedure"). Thus, in the context of a conflicting statute and court rule, our separation of powers analysis examines "whether the challenged statutory provision is substantive or procedural." See Hefetz, 133 Nev. at 330 n.5, 397 P.3d at 478 n.5 (quoting Seisinger v. Siebel, 220 Ariz. 85, 203 P.3d 483, 489 (2009) ). As we have explained, "the [L]egislature may not enact a procedural statute that conflicts with a pre-existing procedural rule, without violating the doctrine of separation of powers, and ... such a statute is of no effect." State v. Connery , 99 Nev. 342, 345, 661 P.2d 1298, 1300 (1983). However, a "legislative encroachment on judicial prerogatives" is implicated only where the statute "interfere[s] with procedure to a point of disruption or attempted abrogation of an existing court rule." Whitlock v. Salmon, 104 Nev. 24, 26, 752 P.2d 210, 211 (1988). The parties ostensibly agree that before analyzing whether NRS 52.380 violates the separation of powers doctrine, we must first analyze whether NRS 52.380 irreconcilably conflicts with NRCP 35 or whether the provisions can be harmonized.

Lyft argues that NRS 52.380 and NRCP 35 irreconcilably conflict. Davis argues that these provisions can be read in harmony. Specifically, Davis asserts that NRCP 35 sets forth general procedures for the examinations, whereas NRS 52.380 provides examinees the substantive right to have an attorney present at all examinations.

NRCP 35 applies in civil actions where a party's "mental or physical condition ... is in controversy" and the opposing party seeks to have an "examination [of that party's condition] by a suitably licensed or certified examiner." NRCP 35(a)(1). However, a party can seek the examination only "on motion for good cause." NRCP 35(a)(2)(A). In interpreting the federal counterpart to NRCP 35, the United States Supreme Court held that good cause under FRCP 35 is "not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require [s] an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy." Schlagenhauf, 379 U.S. at 118, 85 S.Ct. 234. NRCP 35 also prescribes the conditions under which the examination may take place. Relevant to this case, subsection (a)(3) governs recordings, providing that "[o]n request of a party or the examiner, the court may, for good cause shown, require as a condition of...